The chief culprit is the Supreme Court

The Supreme Court is today’s most harmful factor affecting the Jewish state and its values. Concerning Amona, the courts favored the petitioners over the Jewish residents, only because they are Arabs.

Rabbi Eliezer Melamed, 11/12/16 02:22

מצווה. הרב מלמד

פלאש 90

Rabbi Eliezer Melamed

The writer is Head of Yeshivat Har Bracha and a prolific author on Jewish Law, whose works include the series on Jewish law "Pininei Halacha" and a popular weekly column "Revivim" in the Besheva newspaper. His books "The Laws of Prayer" "The Laws of Passover" and "Nation, Land, Army" are presently being translated into English. Other articles by Rabbi Melamed can be viewed at: www.yhb.org.il/1

Last week, I dealt with the issue of clarifying the mitzvah of ‘eshet yefat toar‘ and the inherent moral ‘tikkun‘ (improvement) it embodies: on the one hand, as opposed to the conventional legal situation in the world where it was permitted to do anything with prisoners of war, the mitzvah of ‘eshet yefat toar‘ represented an enormous improvement; on the other hand, the Torah teaches us that it was a transgression permitted bediavad (after the fact), and seeing as ‘aveira goreret aveira’ (one sin leads to another) it was liable to cause conflicts in the family and result in bearing children who are rebellious (Tanchuma Ki Tayzeh 1).

Regarding this, our Sages said: “The Torah only provided for human passions: it is better for Israel to eat flesh of animals about to die yet ritually slaughtered (a doubtful prohibition), than the flesh of dying animals which have perished (a definite prohibition)” (Kiddushin 21b). In this way, the Torah gradually elevates a person until he reaches a complete ‘tikkun‘.

In contrast, the members of the media who ridiculed the Torah’s mitzvot, and the women members of Knesset who petitioned the High Court against the Chief IDF Rabbi’s appointment, defamed the Torah. Besides slandering the word of the living God with their remarks and actions and the tradition of their ancestors who sacrificed their lives to guard it – no less severe, they harmed the welcome moral influence of the Torah in ‘tikkun olam’.

Arrogance and Superficiality

Their behavior is a direct result of their arrogant and superficial worldview which, out of good intentions, offers the world “new religions” and “moral solutions”, that in practice, cause destruction and devastation. Consequently, in order to help the poor, one movement offered the world the “religion of communism” whose followers denounced property rights, initiated murderous wars, and created an evil, dictatorial regime.

Correspondingly, in order to strengthen the rights of the individual, another movement offered the world the “religion of liberal democracy” whereby, regardless of a country’s national character or social circumstances, come what may, the democratic system is expected to always bring about peace and prosperity – and thus, out of blind devotion to the “religion of democracy”, America helped Khomeini establish an evil regime in Iran, and caused havoc and wars in every country they attempted to offer assistance (Egypt, Iraq, Syria, Yemen, Libya, Afghanistan, etc.).

At the same time, inwardly, the “religion of freedom and egalitarianism" caused the breakup of the family and community, decreeing loneliness and misery on countless numbers of people, demonstrated by the constant and alarming decrease in demographics.

The values ​​in whose name they speak, such as justice, brotherhood, equality and freedom are sacred values whose foundations stem from the Torah, but when they emerge out of a superficiality rooted in arrogance and contempt for other values ​​and cultures, as well as ignoring the infinite complexity of human life, they cause immense suffering to countless numbers of people.

It is precisely the Torah that is intended to guide all of us through the complexities of life, teaching us to choose well within a complicated reality.

The Fault of the Legal Establishment

Under normal circumstances a libel suit should have been brought against those who slandered the Torah and Rabbi Krim for allegedly not respecting moral values. But to whom can one appeal? Indeed, the entire legal establishment is contaminated! The Supreme Court judges accepted the petition on the grounds that presumably the allegation that Rabbi Krim supported attacking women during wartime was true.

They should have rejected the petition out of hand for one of two reasons: A) it is not a matter for the court to intervene in administrative decisions, as long as there is no criminal allegations. B) There is no feasibility of truth in the actual petition itself. After all, at no time in history was there ever a Torah commentator who claimed that the taking of an ‘eshet yefat toar’ was a good thing, and it’s illogical to presume that precisely Rabbi Krim would all of a sudden say it was a mitzvah from the Torah. Instead, the judges agreed with the petitioners, accepting the libelous slander that perhaps the Torah actually says so, and consequently, a rabbi could give such a directive.

Having not rejected the petition, they became partners in the slander, similar to what we have learned concerning those who hear loshon ha’ra (evil speech) that they are also considered sinners. For it’s not only the mouse that is a thief, but also the hole encouraging him to enter. The lawyer representing the government whose job it was to defend the Chief IDF Rabbi’s appointment, muttered some nonsensical arguments demonstrating ignorance, disrespect, and mistrust of the Torah and rabbis.

The aim of the petition was to humiliate the laws of the Torah and its adherents, and to show everyone that the secular law is above the Torah, and since the legal establishment volunteered to be part of this, the primary blame lies with them.

The Case of Amona

Also with regard to Jewish settlement in the community of Amona, the legal establishment acted similarly. Ignoring the mitzvah of yishuv ha’aretz (the commandment to settle the Land) and the vision of its redemption in Torah, the Prophets, and Jewish heritage, from the very beginning the courts gave priority to the flimsy claims of the petitioners, which even if they do exist, not once did any of their family members ever purchase these lands, or settle them. The only advantage the petitioners have over the settlers is that they are Arabs, whereas the settlers are Jews; consequently, the court ordered the demolition of their homes.

Harm to the Jewish Identity of the State

In a continuous process, the legal establishment has gnawed away at the country’s Jewish identity. Let’s now recall their main decisions and orders in this issue:

1) In a series of decisions the courts weakened the importance of Shabbat, permitting increasing public desecration of Shabbat (cinemas, shopping centers in outlying areas, etc.);

2) Despite the Knesset passing the “Foundations of Law” statute, whereby in a case of any legal question undecided by Israeli law, the court must decide in accordance with the values ​​of Israel’s heritage – in practice, the Supreme Court depleted this law from all content;

3) the courts harmed Jewish family values by recognizing the adoption of children by same-sex couples;

6) They harmed the status of the Hebrew language as the official national language of the country by nearly equating Arabic to Hebrew;

7) they prevented the disqualification of the Balad party and anti-Zionist candidates for Knesset, and this, in opposition to the opinion of the Elections Committee who relied upon the Basic Law of the Knesset prohibiting a party that negates the Jewish identity of the state to run for election;

8) the court system forced the participation of women singers and actresses in official and semi-official ceremonies, without taking into account the position of halakha and the religious Zionist and haredi communities.

Harm to the Rabbinate and Religious Courts

1) In a series of decisions, the Supreme Court intervened in the discretion of municipal Chief Rabbis regarding the provision of kosher certification;

2) they obligated the religious courts to decide according to secular law in monetary matters;

3) prohibited national religious courts from serving as arbitrators according to the Arbitration Law;

4) established courts dealing with family issues, designed to compete with the religious courts.

Harm to the Importance of Yishuv Ha’aretz

For over 150 years, a national struggle has ensued between the Jews and the Arabs over the Land of Israel. In order to redeem and settle the Land, the ‘Keren Kayemet L’Yisrael’ was established, and afterwards, the State of Israel. However in a gradual process, the Supreme Court has hindered the ability of the State of Israel to fulfill its mission.

1) The Supreme Court prohibited the government from allocating state-owned land for settlement exclusively by Jews.

2) Prohibited giving incentives to Jewish communities in the Galilee and Negev (“making the Galilee and Negev Jewish”), thereby invalidating the ideal which accompanied the Zionist movement from its inception.

3) Even with respect to the lands owned by the ‘Keren Kayemet L’Yisrael’ which were purchased exclusively with Jewish money, as a result of deliberations in the Supreme Court, the then Attorney General Mr. Mazuz, ordered not to give further preference to Jewish settlement.

4) As a result of petitions by leftist organizations, the Supreme Court hastened to intervene, demanding the evacuation of Jewish outposts in Judea and Samaria, while breaching the rules of deliberation obligating a legal process of clarification of ownership of the land before a District and Magistrates court.

5) The courts prohibited the state from crop-spraying to shower pesticides on illegally-planted plots of land by Bedouins in the Negev, despite this being a proven method of restraining their seizure of state-owned lands.

6) As a result of pressure from the courts, the Attorney General obligated the state to divert the route of Nahal Hevron in the northern Negev at the cost of 30 million shekels, claiming the sewage that the Palestinian Authority spilled into it, inconveniences the illegal Bedouin outpost ‘Um-Bitin’ located next to the path of the stream.

7) In the latter part of his first term, the courts prohibited Prime Minister Binyamin Netanyahu from closing the ‘Orient House’, claiming that his government was a ‘provisional government’; on the other hand, they deferred a similar petition against the peace talks in Taba at the end of Ehud Barak’s tenure.

Harm to Israel’s Security

1) The courts prohibited the shaking method of interrogation of suspects by the Shabak (Secret Service), including cases of “ticking-bombs”.

2) They abolished the procedure of “human shields”, when arresting terrorists, a method that had saved the lives of numerous soldiers.

3) The court placed severe restrictions on the IDF, tying their hands in the harming of terrorists about to carry out an attack;

4) The courts disqualified a law – despite being passed in the Knesset – allowing the incarceration of ‘hard’ terrorists for a period of two weeks without seeing a judge, despite the security needs for such a procedure in order to obtain information from them;

5) In opposition to the opinion of the defense establishment, the Supreme Court instructed the dismantling and relocation of sections of the ‘security fence’ and settlement’s security fences in several locations, and also the opening of roads and removal of roadblocks, in full knowledge that this would likely cause a security risk;

6) In a series of decisions, the courts and the legal establishment forced the IDF to enlist women soldiers in combat units, in opposition to the opinion of professional committees.

On occasion, the mere fact that the Supreme Court starts hearing a petition leads governmental agencies to cancel their plans. For example: the Supreme Court held discussions on petitions brought by leftist groups against reducing the supply of gas, electricity, and other goods to Gaza, and subsequently, the then Attorney General Mr. Mazuz, ordered the government to fold up its plans.

Strengthening those Loyal to the Nation and the Land

This short overview is as much as necessary to determine that the legal system is currently the most alienated and most harmful institution in Israel in its affront of Jewish and Zionist values.

Nevertheless, it should be noted that within the legal establishment there are also many positive aspects: it acts in the field of ‘derech eretz’ which precedes Torah, and its very existence helps in keeping law and order, and allows the normal functioning of social and economic frameworks.

It should also be pointed out that we, members of the religiously observant community, are also guilty for the current situation, by not offering a proper alternative to the legal system. I hope to expand on this issue in my next column. In the meantime, let us thank those lawyers, judges and advisors who, out of a deep-seated loyalty to the values ​​of Torah, the nation and the Land, attempt to do their jobs within the existing legal system, thus paving the beginning of the path to correcting the situation.

This article appears in the ‘Besheva’ newspaper, and was translated from Hebrew. Other interesting, informative, and thought-provoking articles by Rabbi Melamed, including all his books on halakha and Jewish thought in Hebrew, and a few in English, can be found at:http://en.yhb.org.il/